FOR
 ex-, USMC
MD07-00064

Current Discharge and Applicant’s Request:

Application Received:  		 		20061012
	Characterization of Service:		
	Basis for Discharge:			  due to:  
	Discharge Authority:			MARCORSEPMAN PAR 6210.3
	Duty Assignment/Command at Discharge:	1STBN 10THMAR 2DMARDIV CAMLEJ NC 28542

Applicant’s Request:
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:  				
	
Applicant’s Issues:
None submitted. 

Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Basis for Discharge shall   due to  .

Date of Decision:					20070823
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Issue 1 (Equity):  The Applicant submitted no issues for consideration.   The Board reviewed the case for equity.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a retention warning,  two nonjudicial punishment (NJP) proceedings, and two Summary Courts-Martial.  The Applicant received NJP for violation of Articles 92 and 107 of the Uniform Code of Military Justice (UCMJ), and was found guilty by Summary Courts-Martial of violating Articles 86, 121, 128, and 134 of the UCMJ.  Violations of Article 92 (Disobedience of a lawful order), Article 107 (False Official Statements),  Article 121 (Larceny), and Article 128 (Assault) are all considered serious offenses for which  a punitive discharge (Bad Conduct or Dishonorable) is authorized if adjudged by a Special or General Court-Martial.   Therefore, an upgrade of characterization to honorable or honorable conditions would be inappropriate in this case.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive:						19970214-19971202 (COG, Delayed Entry Program)
Active:  						 					

Period of Service Under Review:
Date of Enlistment:  				19971203
Years Contracted:  				; Extension:   
Date of Discharge:				20000426
Length of Service
	Active:					02  Yrs  04  Mths  23  Dys  (does not exclude lost time)
	Time Lost During This Period:		73  Days UA:  50  Days Confinement:  23
	
Education Level:  				11
Age at this Enlistment:  				19
AFQT:  						75
MOS:						2531
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		3.7(1)/3.5(1)

Awards and Decorations (as listed on the DD Form 214):  RIFLE MARKSMANSHIP BADGE

Service Record Entries Related to Characterization of Service or Basis for Discharge

19981102:	Counseling:  Advised of deficiencies in performance and conduct (Specifically, irresponsibility with regard to  fire watch duty and not in possession of phone numbers of your chain of command.)  

19981218:	Counseling:  Advised of deficiencies in performance and conduct (Specifically on 19981212  arrested for having stolen license plates in your POV.)  Corrective actions explained, sources of assistance provided.

19990319:	NJP for Viol UCMJ, Art 92: Disobeyed a lawful order issued by SSGT L_ to not drive a POV while drivers license was suspended.   Award:  Forf of $260.00, restriction and extra duty for 14 days.
	Not appealed.

19990514:	Summary Court-Martial.
	Charge I: Viol UCMJ, Art 86 (2 specifications).
	Spec 1: Absent w/out authority fm 0801, 19990320 to 0701, 19990414. Plea: Guilty.  Finding: Guilty. 
	Spec 2: Absent without authority from 0531, 19990415 to 0220, 19990421. Plea: Guilty.  Finding: Guilty. 
	Charge II: Viol UCMJ, Art 87: Missed movement 0531, 1990415. Plea: Not Guilty.  Finding: Not Guilty. 
 	Charge III: Viol UCMJ, Art 134: Broke restriction on/about 0801, 19990320. Plea: Guilty.  Finding: Guilty. 
 	Sentence: Confinement for 21 days at MCB Brig, CamLej, NC, reduction to E-1.
	CA action 19990514:  Sentence approved and ordered executed.

19990606:	Counseling:  Advised of deficiencies in performance and conduct, specifically receiving 2 separate page 11 SRB entries, one NJP, and a Summary Court-Martial in the past twelve months.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19990728:	NJP for violation(s) of UCMJ:
	Article 92: Applicant having knowledge of a lawful order to wit: MCB Camp Lejeune BO P5560.2K, to not operate a vehicle with a fraudulent registratGion, did so on or about 2345, 19990725.
	Article 107: Did on or about 2010, 19990719 with intent to deceive, make to LCpl A_, a false official statement, to wit: “I’m not in the military.”   Award:  Forf $479.00 for 2 months (suspended for 6 months).
	Not appealed.

20000222:	Summary Court-Martial:

	Charge I: Violation of the UCMJ, Article 86 (2 specifications).
	Spec 1: Did on/about 0730, 20000209, without authority, absent himself from his place of duty, to wit: S-4 office, Bldg 519, Camp Lejeune, NC.  Plea: Guilty.  Finding: Not Guilty. 
	Spec 2: Did on/about 0700, 20000102, without authority absent himself from his organization, to wit: 1st BN, 10TH Mar, 2d Mar Div, and did remain so until on or about 1300, 20000121. Plea: Guilty.  Finding: Guilty.
 
	Charge II: Violation of the UCMJ, Article 92 (2 specs): 
 	Spec 1:  Failed to obey a lawful order on or about 0730, 20000209 by not reporting to Gunnery Sergeant.  Plea: Not Guilty.  Finding: Not Guilty.
 	Spec 2: Failed to obey a lawful order on or about 20000117, by wrongfully driving a vehicle while his license and driving privileges are suspended.

	Charge III: Violation of the UCMJ, Article 108: Did on or about 2030, 20000125, willfully destroy by knocking over LCpl R_’s secretary and ripping off the back of the secretary, of a value of about $500.00.  Plea: Not Guilty.  Finding: Not Guilty.
 
	Charge IV: Violation of the UCMJ, Article 121.
	Specification:  Did on or about 19991224, steal a laptop computer, of a value of about $1000.00, the property of PFC D. K. Z_.  Plea: Guilty.  Finding: Guilty. 

	Charge V: Violation of the UCMJ, Article 128.
	Specification:  Did on or about 2030, 20000125, assault LCPL R_ by saying to him “ I’m going to kick your ass” then attempting to make physical contact.  Plea: Guilty.  Finding: Guilty. 

 	Sentence: Confinement for 30 days, forfeiture of $670.00 pay per month for 1 month (suspended for 6 months).
	CA action 19990514:  Sentence approved and ordered executed.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20000228
Basis for Discharge:	 due to:  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		2000229
Rights Elected at Notification:
Consult with Counsel				
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20000303)
SJA review (date):				 (20000412)
Separation Authority (date):	COMMANDING GENERAL, 2D MARINE DIVISION, II MARINE EXPEDITIONARY FORCE (20000417)
	Basis for discharge directed:		 due to:  
	Characterization directed:			
Date Applicant Discharged:			20000426

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				5
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 Aug 01. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 92, 107, 121, or 128.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

				Secretary of the Navy Council of Review Boards
				Attn:  Naval Discharge Review Board
				720 Kennon Street SE Rm 309
				Washington Navy Yard DC  20374-5023